KEMI, PETITIONER/ CROSS-RESPONDENT
v.
JUSTIN THELE; DESIGNED ELECTRICAL INTEGRATORS; METHODIST HOSPITAL; MIDWEST SURGERY CENTER, LLC; ST. FRANCIS MEDICAL CENTER; MIDWEST NEUROSURGEONS; SOUTHEAST MISSOURI ANESTHESIA;
And
HON. JOHN H. MCCRACKEN, ADMINISTRATIVE LAW JUDGE RESPONDENTS/ CROSS-PETITIONERS
CLAIM NO. 201771184
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
March 19, 2021
APPEAL
FROM HON. JOHN H. MCCRACKEN, ADMINISTRATIVE LAW JUDGE
COUNSEL FOR PETITIONER: LMS HON LYN POWERS
COUNSEL FOR RESPONDENT: LMS HON CHRISTION HUTSON, HON JEFFERY
ROBERTS LMS
RESPONDENTS: METHODIST HOSPITAL USPS, MIDWEST NEUROSURGEONS
USPS, MIDWEST SURGERY CENTER, LLC USPS,, SOUTHEST MISSOURI
ANESTHESIA SERVICES LLC USPS, ST. FRANCIS MEDICAL CENTER USPS
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
BORDERS, Member.
Kentucky
Employers Mutual Insurance Company (“KEMI”), the
insurer for Designed Electrical Integrators
(“DEI”), appeals and Justin Thele
(“Thele”) cross-appeals from the March 21, 2019
Interlocutory Opinion and Award, the April 15, 2019 Order on
Petition for Reconsideration, the October 20, 2020 Opinion,
Award, and Order, and the November 4, 2020 Order on Petition
for Reconsideration rendered by Hon. John McCracken,
Administrative Law Judge (“ALJ”).
Thele
filed a Form 101 alleging he was involved in a work-related
accident on August 10, 2017. Thele was working for DEI in
Indiana on a scissor lift 20 feet high. The lift was stuck by
a forklift, causing him to fall, suffering a L1 Chance
fracture and allegedly a pelvic fracture.
In the
Interlocutory Opinion of March 21, 2019, the ALJ determined
Kentucky has jurisdiction over Thele’s claim, and he
awarded temporary total disability (“TTD”)
benefits and medical benefits. The ALJ denied KEMI’s
Petition for Reconsideration. The parties thereafter
proceeded to introduce evidence on the remaining issues.
The ALJ
rendered his final Opinion, Award, and Order on October 20,
2020. The ALJ reiterated his initial finding that Kentucky
had jurisdiction of this claim pursuant to KRS 342.670(1)(b),
and further determined Thele suffered a work-related L1
Chance fracture. He determined Thele’s L5-S1 annular
tear and the resulting surgery were not work-related. He
determined Thele retained a permanent partial disability
(“PPD”) based on the 27% impairment rating
assessed by Dr. Timothy Kriss, enhanced by the
three-multiplier, and determined Thele is not permanently
totally disabled. He dismissed DEI’s claim for
subrogation and ordered Thele undergo a vocational
rehabilitation evaluation. The ALJ also determined which
medical expenses were compensable. However, the ALJ did not
rule on Thele’s request for the imposition of
sanctions.
KEMI
argues the ALJ erred in determining Kentucky has jurisdiction
of this claim. It argues the contract for hire between DEI
and Thele was entered into while Thele was located in
Mississippi, thereby depriving Kentucky of jurisdiction.
Thele argues the Opinion is interlocutory as the ALJ did not
address the motion for sanctions. Thele further argues the
ALJ erred in choosing the 27% impairment rating as opposed to
the 52% impairment rating assessed by Dr. Joseph B. Zehner
and Dr. Sonjay Fonn, as the 27% rating does not include a
rating for a thoracic spine condition. Thele also argues the
ALJ erred in not finding him permanently totally disabled.
For the reason set forth herein, we affirm in part, vacate in
part, and remand.
At the
Benefit Review Conference, the parties agreed to waive their
right to a final hearing and to submit this claim on the
record with the following issues to be determined:
jurisdiction under the Act, work relatedness/causation,
benefits per KRS 342.730, TTD benefits, wages upon return to
work, ability to return to work, credit for subrogation,
vocational rehabilitation, unpaid or contested medicals,
maximum medical improvement (“MMI”), proper use
of the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent
Impairment, (“AMA Guides”), all
medical fee disputes raised by the Employer, timeliness of
medical disputes, and sanctions for failure to pay medical
bills previously ordered paid.
Thele
testified by deposition on August 9, 2018 and April 3, 2020,
and at the hearing held January 22, 2019. Thele is twenty-six
years old and is a high school graduate. He took some
vocational classes in welding, but he holds no welding
certifications. Thele was in an electrical apprenticeship
with DEI. He worked for DEI for a few months in 2014 and then
again in 2016 and 2017. He worked for DEI continuously from
March 2016 until his injury on August 10, 2017. Thele
performed electrical installations, primarily on material
handling systems. While working at DEI, he obtained forklift
and scissor lift certifications. He worked on the Zulily
project in Bethlehem, Pennsylvania and the Home Goods project
in Indiana, where he was injured. While working in
Pennsylvania, he shared a room with his father. When he
worked in Indiana, he rented a camper with his father. His
residence is in Jackson, Missouri.
Thele
was not undergoing medical treatment or taking prescription
medication prior to the August 10, 2017 accident. He was
under no physical restrictions. Thele broke his left arm when
he was 13 years old and underwent surgery. At age 14, he
broke his left wrist and underwent surgery. He received no
treatment after follow-up for that surgery. At age 14, he was
thrown by a horse and was hospitalized for a concussion, but
suffered no lingering effects from the injury.
On
August 10, 2017, Thele was working from a platform that fell
over after a forklift struck it. Thele landed on his back,
and his head bounced off the concrete. He lost consciousness
as a result of the accident. He remembers waking up with a
co-worker telling him to get up and grabbing his arm.
Following the accident, Thele treated at Indiana University
Methodist Hospital from August 10 to August 14, 2017. Dr.
John J. DePowell performed back surgery. Thele went home to
Missouri and continued to treat with Dr. DePowell for a
while. On November 6, 2017,he was released from care for his
left wrist and elbow conditions. No surgery was performed on
the left arm or wrist, and he has had no further treatment
for those injuries. He has no restrictions for the arm or
wrist. Thele next treated with Dr. Fonn for his back and
broken pelvis.
As of
January 2018, Dr. Fonn no longer assigned work restrictions.
After his release by Dr. Fonn in January 2018, Thele received
unemployment benefits for three weeks. He returned to work
for DEI in January or February 2018. On February 18, 2018,
Thele asked DEI to lay him off temporarily so he could return
home for his sister’s wedding. At the time of his
deposition, Thele worked for Davis Glass installing wood and
steel doors, windows, and building frames.
Thele
was involved in a motor vehicle accident (“MVA”)
on June 2, 2018,when he swerved to miss a deer. His truck
went into a ditch and he struck a tree on the driver side. He
did not seek treatment, but bruised his left leg and
sustained a scratch on his arm from broken glass.
Thele’s
testimony at the hearing on January 22, 2019 was consistent
with his deposition testimony. Thele confirmed he initially
contacted DEI concerning employment. The last detail of his
phone conversation concerned his hourly wage. Thele asked for
a wage of $16.00 per hour and DEI accepted. Thele testified
he considered himself to be an employee at the end of the
call.
At his
April 3, 2020 deposition, Thele testified he worked for Davis
Glass from May 2018 through February 28, 2019. He left that
job to undergo surgery by Dr. Fonn. Thele had stopped
treating with Dr. DePowell due to the distance from his
office. As of April 3, 2020, Thele was not taking any
medication for his injury. On March 9, 2020, Dr. Fonn stated
Thele is disabled and directed him to call back as needed.
Dr. Fonn planned to refer Thele for physical therapy, but it
was not approved. Dr. Fonn placed Thele under restrictions.
He has filed for Social Security disability benefits.
Thele
stated that, after his 2018 deposition, he treated at the
emergency room at the St. Francis Medical Center in Cape
Girardeau on one occasion for an unrelated fall prior to the
surgery performed by Dr. Fonn. Thele still experiences
constant fluctuating low back pain. He also experiences right
leg pain that goes to the back of his knee. He occasionally
has pain in his feet and sharp pain shooting down his left
leg...
